Derek O’Brien: Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act

The case of Chief Justice of the Cayman Islands v The Governor and Judicial Legal Services Commission ([2012] UKPC 39) is, arguably, at least as interesting for the questions that the Judicial Committee of the Privy Council (JCPC) did not answer as for the ones that it did and I will, therefore, address both in this blog. I will begin with a brief overview of the unanswered questions, which help to explain the context in which the questions that the Board did answer arose.

The first relates to the extension of the appointment of a Justice of the Grand Court of the Cayman Islands. This is governed by s.96 of the Cayman Islands Constitution, which provides that the Governor may permit a judge of the Grand Court who has reached the age of 65 to continue in office until he has attained such later age, not exceeding the age of 70 years, as agreed between the judge concerned and the Governor, following the recommendation of the Judicial and Legal Services Commission (JLSC). The JLSC is an independent body comprising one ex offico member, being the President of the Court of Appeal, and seven other members appointed by the Governor including: a chairman and one other member, appointed in consultation with the Premier and Leader of the Opposition; a senior judge with recent knowledge of Cayman’s courts; two senior judges from another Commonwealth country or Ireland; and two lawyers qualified to practice in the Cayman Islands. Members of the Legislative Assembly and candidates for elections are disqualified from membership of the JLSC.

Justice Henderson, a Justice of the Grand Court, whose appointment expired in June 2011, by which time he would have been older than 65 (his appointment having preceded the coming into force of the 2009 Constitution), had asked the Governor in December 2010 for an extension of his appointment. The Governor, in turn, sought the advice of the JLSC, which recommended that there was no basis upon which it was necessary in the interests of the administration of justice for Justice Henderson to continue in office beyond the age of retirement, and the Governor duly notified him that he would not be extending his appointment.  The Chief Justice objected to this decision, arguing that the JLSC had wrongly approached the question of the extension of Justice Henderson’s  appointment on the basis that it required ‘exceptional circumstances’ before an extension would be granted and, as a result, had reached an incorrect interpretation of s.96, bearing in mind the way that the section was expressed and the need to preserve judicial independence so that Justices of the Grand Court enjoyed security of tenure free from discretionary intrusion by the Executive.

The second question relates to the power of the Governor, acting in accordance with the advice of the JLSC, to exercise disciplinary control over judges. In early 2012, the JLSC published a Code of Conduct and a Complaints Procedure in relation to the Cayman Islands judiciary, which permits the JLSC after it has investigated a complaint against a judge to advise the Governor that the case calls for the exercise of such powers of disciplinary control short of removal from office as are conferred upon the Governor by s106 (1) of the Constitution, which empowers the Governor to exercise disciplinary control over the judiciary. The Chief Justice objected to this aspect of the Complaints Procedure on the ground that the Constitution did not permit the Governor to ‘impose disciplinary sanctions short of removal.’ I will return to both of these questions later, but first I must sketch out the background to the questions that were answered by the Board.

Ordinarily, it would be expected that in the first instance the two questions outlined above would have to be answered in the Grand Court of the Cayman Islands by way of judicial review proceedings. The Chief Justice, however, instead petitioned Her Majesty to refer the two questions directly to the JCPC for advice, which she did pursuant to pursuant to s.4 of the Judicial Committee Act 1833, which provides that:

 “It shall be lawful for his Majesty to refer to the …judicial committee for hearing or consideration any such other matters whatsoever as his majesty shall think fit; and such committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.”

The Governor having objected to the substantive questions raised in the Petition being dealt with by the JCPC before they had been considered by the Grand Court of the Cayman Islands, the JCPC was obliged to consider whether  it was open to it to decline to rule on issues raised in a Petition referred to it by the Monarch and, if so, the circumstances in which it would be appropriate for it to do so?

In answer to the first of these questions the Board concluded that in the absence of any clear authority on the point it was open in principle to the Board to advise that it was inappropriate to provide substantive answers to the issues raised in a s.4 Petition, if it considered that this was the right course to take. Not only  would it be unattractive for a tribunal to be precluded by law from answering a question referred to it in terms which it considers to be right, but it was also highly unlikely that s.4 was intended to preclude the Board from considering this very issue.

This still left the question of whether this was the right course to take in the instant case and in the Board’s view it was because it would be inappropriate, in the absence of special factors, to consider issues raised in a s.4 petition when, as here, those issues could be raised in the first instance by way of ordinary proceedings in the courts of the territory in which the issues arose. This is, in part, because in a tiered court system the conclusions and reasonings of a higher tier court are likely to be better than that of a lower tier court, as the arguments of the parties tend to become refined and improved as the case progresses up the system, and the judges in a higher tier court benefit from the reasoning of the lower tier courts. It is also in part because respect for the courts of the territory concerned requires that they should have the opportunity to express a view before the JCPC is seised of the case.

But were there any special factors in the instant case, which might justify the questions raised by the petition being considered substantively by the JCPC?  In the Board’s view there were none. The Board was not persuaded by the Chief Justice’s argument that no permanent judge of the Grand Court could deal with the issues raised by the petition because they all supported the position of the Chief Justice and, besides, had an interest in the outcome. As the Board pointed out, it was open to the Governor to appoint a temporary judge under s.97 of the Constitution to hear the judicial review application; the Governor having made it clear that in such a case he would ask the Lord Chief Justice of England and Wales to nominate a temporary judge for that purpose. The Board also rejected the Chief Justice’s other arguments, namely: that it would be difficult to find a suitable Court of Appeal panel; that the issues raised by the Petition were of such high constitutional importance that they ought to dealt with by the Board; that the Board ought to give weight to the wishes of the Chief Justice to have the Petition determined by the Board, and that it would save time and costs to do so. In the Board’s view, the fact that the matters raised were of high constitutional importance only reinforced their conclusion that they ought to be dealt with, initially, by the Grand Court; and whilst weight must be given to the Chief Justice’s wishes, this was counterbalanced by the fact that the Governor did not wish the Board to rule substantively on the Petition.

All of this means that the two substantive questions raised by the Petition will now have to be considered in the first instance by the Grand Court. In dealing with the first of these questions the Grand Court may wish to have regard to the constitutional position in other countries in the Commonwealth Caribbean.  In most of these there is simply no possibility of extending a judge’s appointment once they have reached retirement age save for example, for the purposes of delivering a judgment in proceedings that have already begun. This is presumably to avoid the incentive that the prospect of such an extension might offer to judges to hand down judgments that favour the government. However, in those few countries in which an extension of a judge’s appointment is permitted by the Constitution – The Bahamas, Barbados, Belize and the member states of the OECS (Antigua, Dominica, Grenada, St Lucia, St Kitts and St Vincent) – it is notable that there is considerably more political input than is contemplated by the provisions of the Cayman Constitution to which the Chief Justice objected . Thus, in the Bahamas and Barbados, decisions about extending a judge’s appointment are taken more or less exclusively by the Prime Minister. Though the Prime Minister is required to consult with the Leader of the Opposition this is usually no more than a formality. In Belize, decisions about the extension of the Chief Justice’s appointment are taken by the Prime Minister after consultation with the Leader of the Opposition, and in the case of the other judges extensions are granted upon the advice of the JLSC, but require the concurrence of the Prime Minister after consultation with the Leader of the Opposition. Amongst the OECS countries the power to extend a judge’s appointment ostensibly lies with the JLSC, but the JLSC can only act with the concurrence of the Heads of Government of all the member states. Viewed from a comparative perspective then the position under the Cayman Constitution, where the extension of a judge’s appointment must have been recommended by the JLSC, arguably affords considerably more protection against political manipulation than is afforded in those neighboring countries that permit extensive Prime Ministerial input into decisions about the extension of a judge’s appointment.

The Chief Justice’s objection to the Governor’s powers to impose disciplinary sanctions upon a judge short of removal, however, looks at first glance much stronger from a comparative perspective, since such a power does not exist in any other Commonwealth Caribbean country. The closest parallel is, possibly, Guyana where a judge, who has persistently failed to give written or oral decisions and reasons for the decisions within the period prescribed by the Time Limit for Judicial Decisions Act 2009, may be notified that if he persists in his default action may be taken to remove him from office. However, it is arguable that at the time the independence constitutions of these countries were drafted there was a quite different understanding of the concept of judicial accountability and that they are not, therefore, the best guide to current practice.

If the Grand Court looks outside the Commonwealth Caribbean, however, it will see that a power to discipline judges short of removal from office exists in a number of common law countries, such as the United States, Canada and the United Kingdom. It might also note, however, that in these countries the disciplinary process short of removal is kept very much in-house, being administered entirely by the judiciary. This, at least, addresses the objection, based on the principle of the separation of powers, that the power to impose sanctions short of removal should not be vested in someone like the Governor, who is the Head of the Executive branch. But this is not the only possible objection to the existence of such a power, which has also been criticised by some for having a chilling effect on the capacity of judges to render impartial justice because it invites dissatisfied litigants to harass judges who rule against them (Irving R Kaufman, ‘The Essence of Judicial Independence,’ Columbia Law Review, Vol.80, No.4 671-701).

It remains to be seen whether the Chief Justice’s objections are upheld by the Grand Court. It seems likely, however, based on constitutional practice elsewhere in the Commonwealth Caribbean, that the Grand Court will not regard the involvement of the Governor in decisions about a the extension of a judge’s appointment as fatal. Moreover, while there may be principled objections to the imposition of sanctions upon judges short of removal, precedents for the existence of such a power can be found in a number of other jurisdictions, including the UK.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act’,  UK Const. L. Blog (20th November 2012) (available at http://ukconstitutionallaw.org).

1 Comment

Filed under Comparative law, Judiciary

One response to “Derek O’Brien: Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act

  1. Pingback: I·CONnect – Of Pirates and Caymans: Lessons from the Privy Council for Interpretation of Hong Kong’s Basic Law

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